While we are all trying to enjoy what is left of the summer, a proceeding is taking place at the instigation of the Law Society of Upper Canada that should concern all members of our profession.

Four years ago, Joseph Groia, a highly respected trial lawyer, obtained an acquittal for John Felderhof, chief geologist at the Canadian gold company Bre-X Minerals Ltd., on all eight charges brought against him by the Ontario Securities Commission.

Throughout a good part of August, Groia was before a hearing of the disciplinary committee on charges that he was uncivil to the point of professional misconduct during Felderhof’s trial.

These proceedings offend the basic principles of natural justice and the independence of the judiciary.

A finding adverse to Groia will send a chilling message to Ontario lawyers that, before vigorously advancing an aggressive argument on behalf of their clients, they must first consider their own personal need to avoid offending third parties who are not even in the room.

The circumstances leading to these charges are highly unusual. Felderhof’s lengthy trial was conducted in two stages. It was during the first stage, which lasted for 70 days, that the impugned conduct allegedly took place.

Early in the proceedings, Groia, exercising his professional judgment in what he determined was in the best interests of his client, concluded that the prosecution was being driven by a win-at-all-costs mentality and was thereby shirking its duty to ensure that Felderhof receive a fair trial.

As the trial proceeded, Groia drew the trial judge’s attention to each example that he felt supported his contention.

This increasingly irritated counsel for the prosecution, who requested that the court order Groia to immediately address the issue by way of a motion before the case proceeded any further.

The trial judge ruled that Groia was entitled to identify instances that he felt constituted prosecutorial misconduct and to reserve formal argument on the matter to the end of the trial.

A second point of friction between the prosecution and the defence was whether oral evidence should be heard before or after the admission of documents. The prosecution sought to introduce the documents before the witnesses, while the defence requested that the order be reversed.

After the trial judge ruled in favour of the defence, the prosecutor continued to argue the point, prompting Groia to request that he be found in contempt of court. The prosecutor subsequently apologized for his conduct and there was no finding of contempt.

Soon after, the prosecution brought an application before the late justice Archie Campbell asking for removal of the trial judge.

One of the four grounds for the application was that the trial judge “had failed to restrain the uncivil conduct by defence counsel, thus producing an unfair trial and creating a reasonable apprehension of bias in the judge.”

Campbell dismissed the prosecution’s application and ordered the parties to continue the trial with the existing judge. In a lengthy decision, he wrote that “it is not the task of the court on this motion to pass judgment on Mr. Groia’s litigation style, unless it affects the jurisdiction of the trial judge,” which, he concluded, was not the case.

Having reached this conclusion, any additional commentary by Campbell was obiter. Based on his review of the transcripts of the trial, Campbell nevertheless went on to note that there were excesses on both sides: the prosecution was perhaps too sensitive to the defence’s needling and Groia’s otherwise legitimate arguments sometimes unnecessarily called into question the prosecution’s professional integrity.

However, Campbell expressly acknowledged that it is not “the task of the court on this application to pick over every word of Mr. Groia’s submissions to see if they might be considered offensive.”

The application before Campbell did not constitute a trial of Groia’s conduct — nor should it have — since lawyers in that position are bound to defend the client’s interest rather than their own.

Consequently, the issue of Groia’s conduct was never adjudicated in the application, nor was there ever any mention of disciplinary implications for either the prosecution or the defence.

In a stunning departure from the legal principle of natural justice — the right to know what you are being charged for and to make your case — the law society has taken the position that Groia’s alleged professional misconduct was res judicata, having supposedly been established by the court’s obiter on the application to remove the trial judge and subsequent appeals.

The law society even asserts that it is an abuse of process for Groia to seek his day in court as, in its view, the facts have already been determined.

To date in the hearing, the law society has chosen to simply read segments of the court transcript without calling a single witness. It is puzzling that the law society relies on obiter from judges who witnessed none of the impugned conduct themselves while effectively ignoring the one who saw it all.

Not once during high-pressure proceedings of more than 150 days did the trial judge adversely comment on Groia’s conduct. In fact, the law society had not even ordered a copy of the transcripts from the trial before it made the accusations against Groia.

This complete disregard for the judgment of the trial judge is an affront to another fundamental principle of our legal system: the independence of the judiciary. In the context of a trial, it is the presiding judge who maintains the balance between the sometimes-competing obligations of defence counsel while maintaining an appropriate level of civility.

It is, after all, the trial judge who most understands the context, including the possible basis for the frustration that one counsel may have for the other.

It is the trial judge who can most appreciate all of the elements of a given communication — body language, tone, and even volume — that can lend very different meanings to the same set of words. Indeed, taking communications out of context by turning obiter into findings and reading selective parts of a transcript as evidence is the essence of this proceeding.

It now seems that the tidal wave of destruction that followed the collapse of Bre-X has already inflicted further damage.

In even allowing this proceeding to take place, the law society, the body that more than any other should honour the principles of natural justice and the independence of the judiciary, has flagrantly failed to do so.

If the result is adverse to Groia, a trial judge’s determination that counsel’s behaviour has not transgressed the boundaries of civility will no longer be conclusive.

Trial counsel will have to subordinate their obligation to vigorously represent a client to the fear of appearing uncivil to a disciplinary committee that may not even read the transcripts before making an accusation of professional misconduct.

To all who have an interest in promoting justice in Canada, this is unacceptable.

Kip Daechsel is a Toronto lawyer who has been a member of the law society for more than 27 years.

The Supreme Court of Canada's ruling in Young v. Young [1993] 4 S.C.R. 3 is instructive here. In that case costs were sought against a lawyer personally for alleged conduct issues. The highest court in the land said no. Why ? They said we must be very careful in ordering costs against counsel because this may interfere with solicitor-client confidentiality and the lawyers ability to defend fearlessly. A strict liability professional misconduct offence of civility has the same effect.